Neutral Citation Number: [2012] EWPCC 41 
Claim No: CC 11 P 03258
IN THE PATENTS COUNTY COURT

The Rolls Building
Fetter Lane
London EC4A 1NL

Date: 19/07/2012

Before:

HIS HONOUR JUDGE BIRSS QC

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Between:

	VERNACARE LIMITED	Claimant	
	
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ENVIRONMENTAL PULP PRODUCTS LIMITED	
Defendant	
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Digital Transcription by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London, WC2A 1HP
DX 410 LDE
Telephone No: 020 7067 2900.  Fax No: 020 7831 6864
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MR. PETER COLLEY (instructed by WP THOMPSON & Co) appeared for the Claimant

MR. RICHARD DAVIS (instructed by WALKER MORRIS) appeared for the Defendant

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Judgment

HIS HONOUR JUDGE BIRSS: 

Introduction
1.	This is an action for infringement of Patent GB 2446793 entitled “Receptacle”.  It has a filing date of 31st July 2006.  
2.	The patentee is Vernacare Limited.  Vernacare contend that the patent is infringed by certain products made and sold by Environmental Pulp Products (“EPP”).  Three products are in issue: version 1, version 2 and version 3.  EPP were selling version 1 at the start of the proceedings and admit that version 1 infringes the patent but say that the patent is invalid.  EPP have stopped selling version 1 now and they have replaced it with version 2, which EPP deny infringes.  Now version 2 is to be replaced with version 3, which EPP also deny infringes.  It is further from the claims in version 2.  EPP also contend that the patent is invalid.  In the pleadings three items of prior art were relied upon – Chaplin, US Patent 2296808, published in 1942; Randall, US Patent 2766919, published in 1956; and Zincone, GB 1101524, published in 1968.  At the trial EPP dropped Randall.  EPP also rely on obviousness over common general knowledge alone and contend that the patent is invalid for added matter.  Mr. Peter Colley, instructed by the patent attorneys WP Thompson, appears for Vernacare and Mr. Richard Davis, instructed by Walker Morris, appears for EPP.
3.	The patent relates to disposable washing bowls made of paper pulp.  They are used in hospitals, care homes, nursing home and the like.  After a single use they are disposed in a macerator of the kind used to dispose of disposable urine bottles, bed pans and such like. 
4.	At the case management conference the order made limited the expert evidence to the issues of obviousness and common general knowledge.  There was no disclosure.  The trial, which was called on this morning, took just over a morning to hear, but for a fire alarm it probably would have been over this morning.  There were time limits on the cross-examination.  The limit I set was 45 minutes for each side.  Only claim 1 is in issue.
The Witnesses
5.	Vernacare called expert evidence from Mr. Martin Waller.  He worked for Vernacare as a designer of moulded paper pulp products for 40 years from about 1976 until about 2005.  He is clearly a very experienced designer of these products.  He was a very good and clear witness.  EPP were going to rely on the expert evidence of Mr. Christopher Russell.  However, following the cross-examination of Mr. Waller, Mr. Davis decided not to call Mr. Russell.  His evidence therefore did not play a further part in these proceedings.
Skilled Person
6.	Patents are directed to persons likely to have a practical interest in the subject matter and the skilled person is a person or team with practical knowledge and experience of the kind of work in which the patent is intended to be used.  Vernacare say the skilled person is a designer of one-shot maceratable paper pulp products, such as are used in hospitals and nursing homes.  EPP submit that the skilled person is wider – a designer of paper pulp products generally.  Mr. Waller’s evidence was that designers such as himself, although focused on the hospital market, would be interested in the wider world of paper pulp products.  In my judgment the person skilled in the art in this case interested or likely to be interested in the patent is a designer of one-shot maceratable paper pulp products for use in the hospital environment, as Vernacare submit.  However, I bear in mind that they would certainly be interested in the wider market for paper pulp products and would take an interest in wider questions relating to their design.  Although the claims are not formally limited to products for hospital use, in reality in my judgment the people concerned with this patent and this sort of product are people likely to be working in the market for hospital and care home type products.  
Common General Knowledge
7.	There was little dispute about common general knowledge.  The following matters were common general knowledge.  First of all, urine bottles, bed pans and the like made of maceratable wood pulp and for use in hospitals and the like were common general knowledge.  The skilled person was well aware of the design constraints imposed by the volume and weight of paper pulp products and well understood how to make cuts and ribs in these products to impart strength.  These are all matters of common general knowledge.
The Patent
8.	I can do no better than set out the first few paragraphs of the patent.
“The present invention relates to receptacles and in particular, but not exclusively, to receptacles for use as wash bowls in hospitals, nursing homes and the like.
Patient who are confined to bed find it difficult or impossible to visit a bathroom in order to carry out basic cleaning functions such as washing the hands and face.  In such circumstances, a wash bowl is brought to the patient in bed and is filled with water and cleaning agents (e.g. soap or detergent) to allow the patient to wash.  Conventional wash bowls take the form of a generally planar circular base from the periphery of which an upstanding, slightly outwardly-flaring frustro-conical wall projects upwardly.  The upper end of the wall is formed into an outwardly-turned overhanging peripheral lip in order to facilitate lifting of the bowl, particularly when it is wet.  Such bowls are moulded from common plastics such as polyethylene.
After each use of a wash bowl, it is necessary to clean the bowl thoroughly in order to reduce cross-contamination and cross-infection between patients.  However, it is not possible to eliminate such risks completely and even with very thorough cleaning, the risk of cross-contamination remains
It is known to form disposable urine bottles, bed pans and the like from paper pulp which, after use, can be placed in a macerator to reduce the particles to a size where they can be discharged into the normal sewer system.  However, if a disposable wash bowl were to be made from paper pulp in the same shape and dimensions as the conventional plastics wash bowls, problems would arise.  
In particular, the wash bowl is intended to hold a considerable amount of liquid, of the order of 4 litres, and whilst this would not present too many problems when the bowl is in use, problems are likely to be encountered when it becomes necessary to lift a paper pulp bowl when filled with water.  In particular, if the bowl is lifted by the rim, a moulded paper pulp bowl is unlikely to have sufficient strength and would almost certainly rupture. 
It is therefore an object of the present invention to provide a bowl, such as wash bowl, which can be made from disposable material such as paper pulp but which can be lifted easily and without fear of disintegration.”
9.	Figure 1 of the patent shows the specific embodiment of the invention.  It is as follows:

10.	The point of the invention is to provide recesses in the walls of the wash bowl in order to lift it.  These are explained in the paragraph at the bottom of page 2 of the specification (page 8 as it is in the bundle), as follows:
“By providing recesses in the enclosing wall, it is not necessary to rely on a peripheral lip in order to lift the bowl when full and thus the likelihood of disintegration of a filled bowl is greatly reduced.  In addition, by having recesses in the enclosed wall, a more rigid structure is produced.”
Construction and the Claims
11.	The legal approach to patent construction is well established and there is no dispute on it before me.  The leading authority is Kirin-Amgen v TKT [2005] RPC 9.  They key point is that construction is concerned with what a skilled person would understand the author to be using the words to mean.  Guidelines on the general approach were given by the Court of Appeal in Virgin Atlantic v Premium Aircraft [2010] FSR 10.  I remind myself that the claims are not construed alone or in the abstract, but in their context in the specification that purpose of construction is vital, there may be several purposes and several embodiments and that one in the end is concerned with the meaning of the language used.  Meticulous verbal analysis is eschewed.
12.	Claim 1 provides as follows: 
“An upwardly open wash bowl manufactured from maceratable, dried moulded paper pulp, the wash bowl comprising a base wall and an enclosing wall extending upwardly from the periphery of the base wall and defining a liquid-receiving volume, the enclosing wall comprising recesses located on opposite sides of the liquid-receiving volume below the upper periphery of the enclosing wall and forming grip means located below the upper periphery of the enclosing wall for facilitating lifting.”
13.	I will deal with the issues on construction now.  The first question is the word “maceratable”.  It is plain that the invention must be suitable for being macerated.  That is what maceratable means.  The question is: does it mean maceratable in a hospital or nursing home context or is there a wider context?  As I understand it, the position is that there are more general macerators, but there are specific macerators and maceration machines used in the hospital and nursing home context.  In my judgment, it is that context in the nursing home and hospital in which a skilled person would understand this patent.  
14.	An important question is whether the difference between maceration in a hospital and macerators elsewhere makes any difference.
15.	From the evidence as I heard it, it might have appeared that the only question was whether an object was sized to fit inside a macerator.  However, the evidence on this point was scarce.  It is a matter that Mr. Colley would have cross-examined Mr. Russell about.  Mr. Colley does not accept that size alone is the only question and in my judgment there is nothing inherently improbable about that.  I am not satisfied on the evidence that the only question in relation to maceration is the size of the product.  If I was to have been satisfied about that I would have needed more evidence.  Other properties need to be considered as well and I accept Mr. Colley’s submission that the issue is not just concerned with the size of the product.
16.	The next question is detergent-proofing.  It is common ground that the invention is not limited to a detergent-proof material.  
17.	The next question is “round”.  There was a suggestion at one time in the argument that the patent appeared to be limited to a broadly rectangular product and would not include a bowl, which was round.  I reject that argument.  In my judgment a bowl which is generally round can still satisfy claim 1, provided of course it has the recesses and everything else that is required.
18.	As for the recesses, the first question is what does “for facilitating lifting” mean?  In my judgment in this case it is plain that it means suitable for lifting or capable of lifting.  There is no question of intention in this claim.  
19.	It is notable that the claim uses the plural “recesses” rather than the singular “recess”.  That is natural and reflects reality.  There needs to be a recess on either side in order to be able to lift the product.  It is plain that the recesses need to be broadly symmetrical with each other in order to be able to lift the product and for that matter it is also plain that they need to be more or less in the middle of the wall.  There was a small dispute about whether they had to be broadly central, but in my judgment it is fairly obvious that if the recesses were not broadly central on the sides of these objects it would not be suitable for facilitating lifting.  
20.	Mr. Davis submits that the recess must be spaced away from the lip.  In effect his case is that the recesses must have flat tops spaced away from the peripheral lip.  In support of that he relies on the passage which I have already quoted, at page 2, lines 2 to 23 of the patent (p8 as it is in the bundle).  I do not read that passage in that way.  The patent simply says that it is not necessary to rely on the peripheral lip in order to lift the bowl.  I do not believe the text can be taken to go as far as the argument Mr. Davis is putting forward.  I agree that part of the purpose of the invention is to make it unnecessary to rely on the peripheral lip to lift the bowl, however, the patent makes it clear, for example, at page 3, line 6 (using the page numbers of the published patent) that having an overhanging, finger-engaging lip portion as part of the recesses is optional.  As I understand it what that means, and what would be understood by a skilled person, is that the flat tops on the recesses, which one can see in the figures, are optional.  
21.	I agree with the submission of Mr. Davis that recesses need sides in order to impart their rigidity.  That is how I read the passage at page 2, lines 20 to 23.  Particularly bearing in mind that I believe flat tops are optional, what is not optional is for the recesses to have sides.  That is how they create a more rigid structure.
Infringement
22.	There are three versions of the defendant’s product which are alleged to infringe.  Pictures of versions 1, 2 and 3 are annexed to the judgment.  
23.	Infringement by version 1 is admitted.  
24.	The issue on infringement on version 2 is that the recesses in version 2 can be said to go all the way up to the lip of the bowl.  The question is whether they satisfy the feature of the claim, “recesses located below the upper periphery”.  EPP says they do not because the recesses in a sense go all the way up to the lip.  Vernacare say they do because the recesses are below the upper periphery.   In my judgment version 2 products do infringe.  I do not read the claim as requiring a web of wall material between the lip and the start of the recess.  After all, as I have said already, in my judgment the patent is clear that having flat tops on the recesses is optional.
25.	The issue on version 3 is different.  All there is in version 3 is a ridge running around the wall.  The question is whether this satisfies the requirements of the claim “comprising recesses located on opposite sides of the liquid-receiving volume below the upper periphery of the enclosing wall and forming grip means located below the upper periphery of the enclosing wall for facilitating lifting”.
26.	Vernacare say that there is nothing in the claim to exclude a case in which the recesses are formed from a single ridge.  They are still opposite each other on opposite sides of the wall.  EPP say the claim is talking about plural recesses which extend into the bowl. The vertical parts of the recesses provide strengthening.  I agree with EPP.  In my judgment the sides of these recesses are not optional.  They are there to impart rigidity.  I do not doubt that the horizontal top parts of recesses can give some rigidity, but in my judgment a skilled reader would understand the patent is talking about recesses with side walls.  That is why, it seems to me, the claim is using the plural.  There are multiple recesses.  It makes sense to talk about them being on opposite sides of the product because of that.  Version 3 does not have the claimed recesses and I find it does not infringe.
Added Matter
27.	The law on added matter is well settled.  The correct approach was explained in European Central Bank v Document Security Systems Incorporated [2008] EWCA Civ 192 in the judgment of Jacob LJ, Lloyd LJ and Sir John Chadwick.  In paragraph 12 of the judgment of the court, Jacob LJ approved the summary of the law by Kitchin J, as he then was, in that case.  I will not set it out in this judgment.  I also bear in mind the description of intermediate generalisation given by the Court of Appeal in Vector Corporation v Glatt Air Techniques Ltd [2008] RPC 10, referring back to what Pumfrey J, as he then was, said in Palmaz’s European Patents [1999] RPC 47.  The parties also referred me to the judgment of Arnold J in Dyson v Samsung at paragraphs 243 to 244.  Nothing in that judgment I detected is different in principle from the materials I have already been addressing.  I also refer to my own judgment in Smith & Nephew plc v Convatec Technologies Inc [2012] EWHC (Pat) 1602, paragraph 88, in which I explained how I understood the reference by Pumfrey J to features not being disclosed as having inventive significance and what that meant.
28.	Finally, I remind myself that it is important to distinguish between the disclosure of subject matter and the scope of the claim.  This point arose in A C Edwards Ltd v Acme Signs & Displays Ltd [1992] RPC 131 and was recently reaffirmed in Gedeon Richter plc v Bayer Pharma AG [2012] EWCA Civ 235. 
29.	EPP contend that there is added matter in this patent.  EPP’s case is as follows:
(1) The patent as filed does not disclose the use of recesses except in the context of plural recesses.  
(2) The patent as filed does not disclose the use of recesses located on opposite sides of the liquid-receiving volume except in the context of two recesses located on opposite sides of the liquid-receiving volume.
(3) The patent as filed does not disclose the existence of recesses either (i) located below the upper periphery of the enclosing wall or (ii) forming grip means located below the upper periphery of the enclosing wall for facilitating lifting except in the context of the disclosed embodiments, in particular in combination with the feature of there being two recesses located on opposite sides of the liquid-receiving volume.  In so far as the Patent as granted can be interpreted as disclosing a single circumferential recess, the same is an impermissible intermediate generalisation.
30.	I will follow the approach explained by Aldous J in the Bonzel intervention.  The first question is to consider the disclosure of the application as filed.  Considering the points raised by the defendant: on point (1) I agree that the application as filed is concerned with and discloses recesses.  I agree with point (2) in the sense that when the application speaks about opposite sides it means recesses on each side of the bowl.   Point (3) is concerned with intermediate generalisation.  There was no textual support for the words “located below the periphery”.  The question is whether a skilled person would derive them clearly and unambiguously from the application, either explicitly or implicitly.  In my judgement, looking at the document as a whole, it would be implicit and plain to a skilled person that the recesses or grip means are located below the periphery.  I do not see this as a limitation coming only from a specific embodiment.  This is after all a very simple disclosure.  
31.	The next step is to read the patent and compare the disclosures.  In my judgment the disclosure of the patent is the same as the disclosure of the application on all three points, and there is no added matter in this case.  At worst there is a small degree of broadening in the language which is perhaps, and in fact I do not think it goes this far, into A C Edwards v Acme territory.  It is a broader claim but not a broader disclosure.  I reject the attack of added subject matter.
Obviousness
32.	I should say that there was a suggestion of an attack of lack of novelty, but for reasons which I will explain when I get to obviousness, I reject it.
33.	The right approach to obviousness is the structured approached set out in Windsurfing International plc v Tabur Marine (GB) Ltd [1985] RPC 59 and adjusted in Pozzoli v BDMO [2007] EWCA Civ 588, [2007] FSR 37.  It is: 
(1) (a) Identify the notional person skilled in the art; 
(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?
34.	The skilled person and the common general knowledge have been dealt with above.  The inventive concept of claim 1 is adequately set out in the claim.  There are three starting points to deal with – US 2 296 808 (“Chaplin”), GB 1 101 524 (“Zincone”) and common general knowledge.  
Chaplin
35.	Chaplin is entitled “Reinforced molded fiber container”.  I can do no better than set out the first three paragraphs of the disclosure.  This is from page 1, left hand column, lines 1 to 19.
“This invention relates to molded fiber containers or trays commonly known as butter or lard trays.
“Containers or trays for this purpose have long been made of rectangular or oblong shape, where the length is from one and one-half to one and three-quarters the width.  Both side and end walls are ordinarily formed from flat sheets sloping inwardly to permit the trays to be nested for shipment.  The junction between the side and the end walls may be substantially at right angles, or may be somewhat rounded depending on the materials and methods used in manufacture.
This general shape of container or tray is almost universally used in the delivery of such products as butter, lard, peanut butter, delicatessen products, etc.  This particular shape has many advantages in handling and delivery of such products.”
36.	The figures Chaplin are as follows:

37.	The purpose of the recess in Chaplin, which can be seen in the figures, is as a reinforcing member.  That is clear and it is common ground that in terms of lifting the Chaplin article one is taught by the document to lift the product from the end.  In my judgment there can be no novelty attack sensibly raised over Chaplin because it is not inevitable that it would be made from the maceratable material as required by the claim.  The question is whether it would have been obvious.  If it was obvious to do that, the question then arises whether the product that would be made based on Chaplin would satisfy claim 1.  
38.	Mr. Waller accepted in cross-examination that maceratable material would have been the standard choice of material.  The question posed by Mr. Colley was one of motivation.  Why would a skilled person make the product of Chaplin using what I will call hospital maceratable material?  There is no evidence before me about a motivation of that kind.  I have accepted that it is not just a question of fitting the object into a hospital macerator.  In my judgment it would not be obvious to make the product of Chaplin from a material which would satisfy the claim as being maceratable.  After all the disclosure of Chaplin is to make a butter dish.  
39.	Mr. Davis on this point took a pleading point.  He is right that in the Patents County Court all facts, matters and arguments must be pleaded.  It is clear that in their pleading the claimant did not deny that the Chaplin product was maceratable.  If that was all there was, then I would not permit this point to be run.  However, in the exchange of experts’ reports it is clear that both witnesses addressed maceration.  In particular paragraph 13.3 of Mr. Russell’s evidence, which is not in evidence for this case but its existence is relevant to this issue, gave his view that Chaplin was maceratable, among other things.  Moreover, Mr. Davis cross-examined Mr. Waller on whether Chaplin was maceratable.  Had Mr. Davis been relying on the pleading point, he would have had no need to cross-examine the witness.  In my judgment it is open to Mr. Colley to make this point.
40.	I have found that it is not obvious on its own merits to make a Chaplin butter dish out of maceratable material but that does not dispose of the issue of obviousness.  The question is then whether it would be obvious to make a hospital product based on Chaplin as a starting point.  Mr. Waller says this would have been of no interest to a skilled person.  Mr. Davis’ submission on behalf of EPP is that it is not a correct approach in law to say that the skilled person would simply ignore a reference.
41.	The law on this point is the Macopharma case (Asahi Medical v Macopharma [2002] EWCA Civ 466).  As a matter of principle, the skilled person reads any given piece of prior art with interest.  However, as a matter of principle again, once they have done so, there is nothing to say as a matter of law that the skilled person is not entitled to say having read it with interest, “I have read it with interest, but I am not interested.”  The context is vital.  In my judgment there is nothing in this document which adds to the common general knowledge from the point of view of someone reading it in 2006.  A skilled person in this case, as I have defined that person, would read it and see nothing of interest in it.  There is nothing here, in my judgment, to trigger a skilled person to do anything at all, except perhaps to make a butter tray of that shape if that is what they wanted to do.  I think the argument that this would make a hospital product obvious is not one which is fair to inventors and in my judgment the claim is not obvious over Chaplin.
Zincone
42.	Zincone is entitled “Infant Bath-Tub”.  The document describes a plastic bath tub with recesses in the moulding to make a seat for the baby to rest against and to make a flat surface for the soap.  It is best seen in the pictures.  Figures 1, 2 and 3 are as follows: 

43.	I think this is much further away than Chaplin.  Mr. Davis submitted in his written submissions that a bowl for washing is a wash bowl.  I disagree.  This is a baby bath.  It is much larger and it is made of plastic.  In my judgment a skilled person without hindsight provided with this document would read it with interest and would put it to one side.  There is no motivation at all that I can conceive of why you would make this object out of maceratable wood pulp.  The claim is not obvious over Zincone.
Common General Knowledge alone
44.	In my judgment this is the strongest attack that EPP have.  The common general knowledge included a number of bowls made of maceratable pulp.  There are images of the evidence in this case.  They have no recesses in the walls.  Mr. Colley warned me that attacks based on common general knowledge alone can involve a real danger of hindsight and I will bear that in mind.  
45.	EPP put their case as follows.  First of all, they rely on paragraph 19 of Mr. Waller’s report, who said the following:
“In my opinion, at the filing date of the patent the common general knowledge in this field consisted of maceratable moulded paper pulp products including bedpans, urine bottles, general purposes bowls and other containers for use in hospitals, care homes and other medical environments.  The majority of these products were designed to receive and resist liquids at body temperature and below but none of them were able to resist detergent solutions.”
This would appear to be evidence that it might not have been obvious to make   the product in the claim because it had to be detergent-proof.  That point, however, is no longer relied on by Vernacare.
46.	Before me EPP’s case consisted of two attacks.  The first point was as follows.  First, it was obviously desirable to make a wash bowl from paper pulp.  That is something that Mr. Waller accepted.  In my judgment that is important evidence.  Second, it was obvious to use standard design options such as ribs, and Mr. Waller accepted that.  Third, such ribs could take the shape of the patent, and Mr. Waller agreed.  Fourth, the designer would not say “do not lift a product like this” (i.e. by the ribs) if it was made with ribs.  Again, Mr. Waller accepted that.  So the argument goes at this stage that it was obvious to make a product which could take the shape of the patent even if the recesses were not intended to be handles.  
47.	I do not accept this first attack.  It seems to me it is based on submissions and evidence to say that one “could” use routine options to end up inside the claim.  That is true, but again it is not fair to inventors.  Although the law is not as simple as saying that “could” is not enough to show obviousness, whereas what one needs is always “would”, on the facts of this case, with a simple invention, it is plain that one “could” do all of these things.  The issue is whether there was a motivation to make a specific arrangement of strengthening ribs which would end up inside the claim.  There was no evidence of that and nothing that was put to Mr. Waller established that one would be motivated to make recesses which actually satisfied claim 1 on this approach.  I reject Mr. Davis’ first attack over common general knowledge alone.   
48.	His best case is the second one.  This goes as follows.  The skilled person would know that lifting objects made of paper pulp was limited by the structural integrity of the material, and Mr. Waller accepted that.  The skilled person would also know, Mr. Davis put to the witness, that it was undesirable to lift by the rim.  Mr. Waller’s answer was that depended on whether the bowl was strong enough.  Mr. Davis’ next question was that it was advantageous to have something other than a rim to lift by and Mr. Waller said yes that it was; next, that recesses or protrusions in the side wall were routine options for a designer to consider, and Mr. Waller accepted that; and that two handles, one on either side, were natural, and Mr. Waller accepted that.
49.	Finally, it was put to Mr. Waller that the only reason he had given in his report why claim 1 was not obvious over common general knowledge, was the detergent-proofing point.  The witness accepted that there was no other reason why the skilled person could not make a product in claim 1 by a standard techniques.  In my judgment that latter answer, concerned with Mr. Waller’s report and standard techniques does not help.  The fact that it is true, and I do not doubt it at all and I am not surprised that Mr. Waller accepted it, does not make the invention obvious.  
50.	Even apart from that final point, I believe Mr. Davis has a powerful case that this invention is obvious as a common general knowledge alone.  It is all really rather simple: handles are an obviously desirable desideratum and it is natural to make them this way.  However, it seems to me that this argument is tainted with hindsight.  As Mr. Waller himself said, the lips might be strong enough and if they were there would be no need for recesses.  Moreover, to my mind, starting from common general knowledge alone, the skilled person could take the approach of version 3; that is to say, EPP’s version 3.  That is not within the claim.  If the claim was wide enough to cover version 3, then in my judgment there would be very little in this invention.  It would be little more than a bowl with any sort of strengthening ribs, but in my judgment there is more to it than that.  I bear in mind Laddie J’s judgment in Brugger v Medicaid that just because there are alternative ways forward does not mean that any one of them is necessarily not obvious.  
51.	However, in this case I am struck by the simplicity of this invention.  As Mr. Colley said, if it was obvious, why was it not done before?  Mr. Davis said that is because commercially detergent-proofing only came at the same time as this invention.  I am not satisfied that that is a complete answer to this point.  It is clear that bowls were already common general knowledge.  Although they were smaller than the four litres referred to in this patent, EPP established that the patent is not limited to a four-litre bowl and Mr. Davis put to Mr. Waller, and he agreed, that a one-litre bowl was reasonable.  That is a much smaller product.  I also do not accept that the cross-examination on another Vernacare patent application GB 2 439 947, is of assistance.  Mr. Davis sought to characterise the answers Mr. Waller gave there as an admission that, but for the detergent point, the invention was obvious.  But that is not the question that was asked.  That is not what Mr. Waller said and I do not think that is a fair summary of his evidence.
52.	Overall, in my judgment, the cross-examination of Mr. Waller on common general knowledge alone was the classic Technograph step by step approach based on the cross-examiner knowing exactly where he wants to go.  In my judgment it is not fair to inventors.  I am not satisfied that claim 1 is obvious over common general knowledge alone.  
53.	Accordingly, I conclude that the patent is valid, it is infringed by version 1 and by version 2 and not by version 3.  

Annex
Version 1: 

Version 2: 

Version 3:

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